Testing

If you are offered a Supreme Court appointment, take it. Life tenure? Love it. Same for the Court’s almost absolute power to set its agenda.

But why only “almost” absolute? The Constitution lets the Justices decide only actual “controversies.” Without a live lawsuit, they have no more power than you or me.

And they cannot duck every issue. Their settled practice is to review every lower-court decision striking down an important law.

The upshot is that the parties and lawyers driving the gay-marriage cases have cornered the Justices. They brought and won cases striking down a federal law, a California initiative, and an Arizona statute.

In fact, these are test cases. On day one, the lawyers knew that persuading the lower courts just meant they would end up here. They wanted to force the Justices’ hands.

It worked. Even if the Court wants to stay out, it cannot. Whoever wins, and whoever loses, the Court’s decision won’t be “judicial activism.” Not in the sense of the Court injecting itself into the question.

It seems like a crazy system. A lawyer with a client can set incredibly powerful wheels in motion – producing a decision that will set the nation’s social and cultural agenda, and define tens of millions of loving relationships.

In cases like these that ask basic questions about who we are as a people, the Constitution provides surprisingly little guidance. And even the most brilliant lawyering cannot make much difference. Inevitably, the question reduces to who these Justices believe we are.

The dilemma for gay rights advocates is that these test cases may be too much, too soon. Too much because Justice Kennedy – the decisive vote – is a conservative on a conservative Court, and many conservatives view heterosexual marriage as foundational.

Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the Court generally rides a horse and buggy. Often, that is just what we want: a Court that does not get pulled along by the tides of the moment.

To the political center and left, and to libertarians, the answer in these cases is now pretty obvious. The Justices, on the other hand, are tradition bound, distant from the media, and insulated from cultural and political winds. They may need more time before they understand this “new normal.”

To be clear: a Supreme Court decision recognizing the right of same-sex couples to marry is inevitable. Someday. But in twenty years, the Court will be different. It will have caught up with the country. But a majority may not be there yet.

Instead, these cases are a bolt from the blue. Five years ago, serious people did not think these claims could be won before these Justices. The notion that discrimination against homosexuals in marriage is unconstitutional is not “baked in” to our legal culture.

Without the time to adapt, this Court is unpredictable. Take Bush v. Gore and Obamacare. The constitutional claims in both cases were generally regarded as ridiculous. But the cases raced ahead to the Court. And both claims won, with only the Chief Justice saving the health care statute.

That is why other historic test cases like Brown v. Board of Education are so different. The NAACP controlled race discrimination litigation. It built a body of lower court and Supreme Court decisions over years. The Court had time to adapt before it had to decide.

And of course, Brown was decided by a very different Court. You cannot point to many liberal test cases that won in recent decades. Conservatives have won on guns and affirmative action; they lost on property rights. But for pretty good reasons, the left does not even try. Progressive groups spend all their energy keeping cases away from this Court.

And the wrong test case brought too soon can cause real harm. A Supreme Court case is not like a proposed bill that, when Congress votes against it, you are no worse off. The rule maybe should be: do not ask the Supreme Court a question if you do not already know the answer.

Bowers v. Hardwick was an ACLU test case in 1986. The Court upheld sodomy laws in a vicious five-to-four decision that empowered gay rights opponents. It took seventeen years to overrule.

Still, who am I to say these cases are a mistake? I am straight and married. And I am white and well off. I got mine.

I could not have told Thurgood Marshall to slow down. And I cannot say that to Edith Windsor, Kristin Perry, or Joseph Diaz either. These laws cause them and their loved ones grievous harm. They have every right to seek justice.

When the decisions are issued in late June, everyone involved will be a hero or a goat. I do not know which. But I do worry.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.